United States v. Fernando Zaldivar-Pineda

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 17, 2011
No. 11-10582
JOHN LEY
Non-Argument Calendar
CLERK
________________________

D.C. Docket No. 1:10-cr-00386-JEC-GGB-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

versus

FERNANDO ZALDIVAR-PINEDA,

llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(October 17, 2011)

Before BARKETT, MARCUS, and FAY, Circuit Judges.

PER CURIAM:
Fernando Zaldivar-Pineda appeals his 51-month sentence for illegal reentry

after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). He argues that his

sentence is substantively unreasonable because: (1) it is longer than necessary to

achieve the sentencing goals encompassed in 18 U.S.C. § 3553(a); (2) the court

did not take into account his characteristics or the nature of the offense; and

(3) the 16-level enhancement he received pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) for being previously deported after being convicted of a crime

of violence was unnecessarily harsh and constituted double counting. For the

reasons set forth below, we affirm Zaldivar-Pineda’s sentence.

Zaldivar-Pineda, a citizen of Honduras, entered the country legally in 1998.

He was convicted of three counts of robbery on February 9, 2004, and

administratively deported on November 19, 2007. He reentered the United States

in October 2009 without permission.

Zaldivar-Pineda’s base offense level was eight, pursuant to U.S.S.G.

§ 2L1.2. He received a 16-level enhancement under § 2L1.2(b)(1)(A)(i)1 because

he was previously deported after being convicted of a crime of violence, namely,

1
The presentence investigation report appears to contain a typographical error, as it is
actually U.S.S.G. § 2L1.2(b)(1)(A)(ii) that mandates a 16-level enhancement when a defendant
has previously been deported after being convicted of a crime of violence.

2
robbery. After a 3-level reduction for acceptance of responsibility, Zaldivar-

Pineda’s total adjusted offense level was 21. He was assigned a criminal history

category of III because he had prior convictions for theft by shoplifting and

robbery and because he committed the instant offense while on probation. As to

his robbery convictions, Zaldivar-Pineda and two codefendants had used a 9

millimeter handgun to unlawfully take a wallet, jewelry, a cell phone, boots, and

money from three victims. Based on an offense level of 21 and a criminal history

category of III, Zaldivar-Pineda’s guideline range was 46 to 57 months’

imprisonment, and the statutory maximum sentence was 20 years’ imprisonment.

At sentencing, Zaldivar-Pineda argued, through counsel, that he should

receive a sentence below the guideline range. He explained that Zaldivar-Pineda

had been the driver in the robbery, but he had not possessed any firearms or

actually committed the robbery. He argued that assessing criminal history points

as well as a 16-level enhancement for his robbery convictions constituted double

counting. Further, the 16-level enhancement was arbitrary and unfair. Thus, he

asked the court to reduce either the 16-level enhancement or his criminal history

category. Zaldivar-Pineda also asked the court to consider his reason for returning

to the United States, which was to help his ill mother return to Honduras. He did

not plan to move back to the United States.

3
The court stated that, in this case, the 16-level enhancement was not

arbitrary, and it did not matter that Zaldivar-Pineda was only the driver in the

robbery due to the violent nature of the crime. The court did not believe Zaldivar-

Pineda’s explanation for why he returned to the Untied States, nor did it believe

that Zaldivar-Pineda did not plan to return once he was deported. The court

considered the factors set forth in 18 U.S.C. § 3553(a) and sentenced Zaldivar-

Pineda to 51 months’ imprisonment. Zaldivar-Pineda objected that the sentence

was unreasonable and that the 16-level enhancement was arbitrary.

II.

We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,

169 L.Ed.2d 445 (2007). Under the abuse of discretion standard, the sentence will

be affirmed “unless we find that the district court has made a clear error of

judgment.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en

banc). “[W]e will not second guess the weight (or lack thereof) that the [district

court] accorded to a given factor . . . as long as the sentence ultimately imposed is

reasonable in light of all the circumstances presented.” United States v. Snipes,

611 F.3d 855, 872 (11th Cir. 2010) (quotation omitted), cert. denied, (U.S. June 6,

2011) (Nos. 10-1075, 10A630).

4
The district court is required to “impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set forth in” 18 U.S.C.

§ 3553(a)(2). 18 U.S.C. § 3553(a). These purposes include the need to reflect the

seriousness of the offense, promote respect for the law, provide just punishment

for the offense, deter criminal conduct, and protect the public from the defendant’s

future criminal conduct. Id. § 3553(a)(2). The court must also consider the nature

and circumstances of the offense, the defendant’s history and characteristics, the

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. Id.

§ 3553(a)(1), (3)-(7). We determine whether a sentence is substantively

reasonable by examining the sentence in light of the record and the § 3553(a)

factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We expect a

sentence within the guideline range to be reasonable. United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). The reasonableness of a sentence may also

be indicated when the sentence imposed is well below the statutory maximum

sentence. See id. The party challenging a sentence bears the burden of

establishing that it is unreasonable. Talley, 431 F.3d at 788.

5
In United States v. Adeleke, 968 F.2d 1159 (11th Cir. 1992), we upheld the

enhancements in § 2L1.2(b)(1) because: (1) they rationally promoted the policy of

deterring aliens who were also convicted felons from reentering the United States;

and (2) they did not result in improper double counting because the Sentencing

“Commission clearly intended prior felonies to count against defendants under

both the criminal history section and § 2L1.2.” Adeleke, 968 F.2d at 1160-61.

Zaldivar-Pineda has failed to demonstrate that his sentence was

substantively unreasonable in light of the record and the § 3553(a) factors. The

court’s sentence of 51 months is within the applicable guideline range of 46 to 57

months and well below the 20-year statutory maximum sentence, and we

ordinarily expect such a sentence to be reasonable. See Gonzalez, 550 F.3d at

1324. The sentence, moreover, met the goals encompassed within 18 U.S.C.

§ 3553(a). Zaldivar-Pineda was deported in 2007 after being convicted of three

counts of robbery. He illegally reentered the country less than two years after

being deported and while still on probation. Considering Zaldivar-Pineda’s

criminal history and disregard for the criminal and immigration laws of the United

States, a sentence within the guideline range was necessary to promote respect for

the law, provide just punishment, deter Zaldivar-Pineda from further criminal

activity, and protect the public. Furthermore, the court considered

6
Zaldivar-Pineda’s characteristics and stated reason for returning to the United

States, but it did not believe that Zaldivar-Pineda returned to the country simply to

help his mother move to Honduras, nor did it believe that he did not plan to return

again. Thus, a lower sentence was not warranted based on his characteristics or

history, and we will not re-weigh the factors because Zaldivar-Pineda’s ultimate

sentence was reasonable. See Snipes, 611 F.3d at 872.

Zaldivar-Pineda’s arguments as to the 16-level enhancement and

§ 2L1.2(b)(1)(A) are also meritless. The § 2L1.2(b)(1) enhancements are justified

because they deter aliens who are convicted felons from returning to the United

States. See Adeleke, 968 F.2d at 1160-61. Furthermore, these enhancements are

not impermissible double counting because the Sentencing Commission intended

for prior felonies to result in both an increased criminal history score and a

§ 2L1.2(b)(1) enhancement. See id. at 1161. Therefore, the court did not abuse its

discretion in applying this enhancement, and, as discussed above, the court

imposed a reasonable sentence that achieved the sentencing goals of § 3553(a).

For the foregoing reasons, we affirm Zaldivar-Pineda’s sentence.

AFFIRMED.